The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 7, 2019
2019COA19
No. 17CA1257, Parks v. Parrish — Torts — Abuse of Process; Attorneys and Clients — Malpractice; Attorney Fees
A division of the court of appeals considers whether bringing a
legal malpractice action to avoid or reduce liability for a former
attorney’s legal fees satisfies the improper use prong of a claim for
abuse of process. The division concludes that it does not.
Improper use requires the use of a proceeding to achieve an
illegitimate or coercive goal that is outside the scope of the
proceeding’s proper purpose. Because a regular and legitimate
function of a legal malpractice action is to avoid paying attorney
fees, bringing a legal malpractice case and carrying it to its natural
end does not constitute improper use, regardless of the motive.
Accordingly, the division vacates the judgment on the attorney’s
abuse of process claim. The division also considers whether an attorney seeking
damages for unpaid attorney fees must call an expert witness to
testify that the fees sought as damages are reasonable. The division
holds that such testimony is not required; reasonableness may be
proved by testimony from the attorney who performed the services
in question and other documentary evidence. COLORADO COURT OF APPEALS 2019COA19
Court of Appeals No. 17CA1257 Jefferson County District Court No. 15CV31645 Honorable Randall C. Arp, Judge
James D. Parks III,
Plaintiff-Appellant,
v.
Edward Dale Parrish LLC, a Colorado limited liability company; and Edward Dale Parrish, individually,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE J. JONES Navarro and Casebolt*, JJ., concur
Announced February 7, 2019
Westerfield & Martin, LLC, Zachary S. Westerfield, Logan R. Martin, Denver, Colorado, for Plaintiff-Appellant
Edward Dale Parrish, PC, Dale Parrish, Wheat Ridge, Colorado, for Defendants- Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Plaintiff, James D. Parks III, appeals from an unfavorable
outcome in his malpractice case against his former attorney,
defendant Edward Dale Parrish, and Parrish’s limited liability
company/law firm, Edward Dale Parrish LLC (the law firm). He
contends that the district court erred by (1) denying his motion for
directed verdict (and subsequent motion for judgment
notwithstanding the verdict (JNOV)) on defendants’ abuse of
process counterclaim; (2) dismissing his breach of fiduciary duty
claim; (3) denying his motion for directed verdict on defendants’
breach of contract counterclaim; and (4) awarding defendants their
costs for an expert witness. We agree with Parks’ first contention,
but disagree with his second, third, and fourth contentions.
Accordingly, we affirm in part and vacate in part.
I. Background
¶2 Parrish and the law firm represented Parks in two cases — a
partition case and a dissolution case — against Parks’ former, long-
term girlfriend. 1 Neither case was resolved to Parks’ liking. He told
Parrish to appeal the award of attorney fees against him in the
1 Parrish was actually Parks’ second attorney. Parks’ first attorney left her firm and withdrew as Parks’ counsel.
1 dissolution case. Parrish said, “Not unless you pay me,” and after
failed payment negotiations, filed a notice of attorney’s lien in the
partition case.
¶3 In response, Parks filed this case against defendants, 2 alleging
that defendants provided negligent representation and breached
their fiduciary duty to Parks in the partition and dissolution cases.
More particularly, and as now relevant, Parks alleged that Parrish
failed to present evidence that would have avoided an award of
attorney fees against Parks in the dissolution case, and that Parrish
entered into a stipulation in the partition case without authority.
Defendants counterclaimed for breach of contract (seeking an
award of fees incurred in previously representing Parks) and abuse
of process (based on Parks bringing this case).
¶4 Parks moved for summary judgment on the abuse of process
counterclaim. The district court denied the motion, concluding that
“if a jury found that Defendants did not provide negligent
representation, then the jury could find that Plaintiff brought this
action for the sole purpose of avoiding paying his legal fees by
2Parks named several other individuals as defendants, but Parrish and the law firm are the sole remaining defendants.
2 attempting to coerce Defendants into either reducing the fees or
accepting payment in an unacceptable form.”
¶5 The case went to trial. At the close of Parks’ evidence,
defendants moved for directed verdicts on all of Parks’ claims. At
first, the district court denied the motion in toto. But the next trial
day, the court reconsidered defendants’ motion as to the breach of
fiduciary duty claim. The court heard additional argument from
both sides, concluded that the breach of fiduciary duty claim was
duplicative of the negligence claim, and dismissed that claim.
¶6 Parks later moved for directed verdicts on defendants’
counterclaims. The court denied that motion.
¶7 The jury returned verdicts for defendants on all claims and
counterclaims, awarding defendants $33,580 on the breach of
contract counterclaim and $46,314 on the abuse of process
counterclaim. Defendants also moved for an award of costs for
their expert witness. The court awarded $8,000. Parks moved for
JNOV. By rule, that motion was deemed denied when the district
court didn’t timely act on it. See C.R.C.P. 59(j).
3 II. Discussion
A. Abuse of Process
¶8 Parks first contends that the district court erred in denying his
motion for directed verdict and motion for JNOV on defendants’
abuse of process counterclaim. We agree and vacate the judgment
on that counterclaim.
1. Standard of Review
¶9 We review de novo a district court’s denials of a motion for
directed verdict and a motion for JNOV. Int’l Network, Inc. v.
Woodard, 2017 COA 44, ¶ 8.
¶ 10 We view the evidence, and all inferences that may reasonably
be drawn therefrom, in the light most favorable to the nonmoving
party. Id. A court shouldn’t grant either motion unless there is no
evidence that could support a verdict against the moving party on
the claim. Id.; accord Boulders at Escalante LLC v. Otten Johnson
Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 19.
2. Applicable Law and Analysis
¶ 11 Abuse of process provides a remedy for situations where
litigation, though properly commenced, is misused to coerce or
compel a result that couldn’t normally be obtained via the ordinary
4 use of process. Active Release Techniques, LLC v. Xtomic, LLC, 2017
COA 14, ¶ 8; Walker v. Van Laningham, 148 P.3d 391, 394 (Colo.
App. 2006) (“The essence of the tort of abuse of process is the use of
a legal proceeding primarily to accomplish a purpose that the
proceeding was not designed to achieve.”). 3
¶ 12 An ulterior or even nefarious motive, alone, isn’t enough to
constitute an abuse of process. To prove an abuse of process, the
claimant must show
(1) an ulterior purpose for the use of a judicial proceeding; (2) willful action in the use of that process which is not proper in the regular course of the proceedings, i.e., use of a legal proceeding in an improper manner; and (3) resulting damage.
Mackall v. JPMorgan Chase Bank, N.A., 2014 COA 120, ¶ 39
(quoting Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200,
202 (Colo. App. 1998)).
3Abuse of process isn’t synonymous with malicious prosecution. Malicious prosecution “addresses the situation where a person knowingly initiates baseless litigation.” Mintz v. Accident & Injury Med. Specialists, PC, 284 P.3d 62, 66 (Colo. App. 2010), aff’d, 2012 CO 50. It also has an additional element that the prior action ended in favor of the malicious prosecution plaintiff. Hewitt v. Rice, 154 P.3d 408, 411, 413-14 (Colo. 2007).
5 ¶ 13 The second element is distinct from the first. “[T]here is no
liability for abuse of process if the [party’s] ulterior purpose was
simply incidental to the proceeding’s proper purpose.” Mintz v.
Accident & Injury Med. Specialists, PC, 284 P.3d 62, 66 (Colo. App.
2010), aff’d, 2012 CO 50. Put another way, “[i]f the action is
confined to its regular and legitimate function in relation to the
cause of action stated in the complaint[,] there is no abuse, even if
the plaintiff had an ulterior motive in bringing the action or if he
knowingly brought suit upon an unfounded claim.” Colo. Cmty.
Bank v. Hoffman, 2013 COA 146, ¶ 37 (quoting Sterenbuch v. Goss,
266 P.3d 428, 439 (Colo. App. 2011)); see W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 121, at 898 (5th ed. 1984)
(abuse of process requires a “definite act or threat not authorized by
the process, or aimed at an objective not legitimate in the use of the
process”).
¶ 14 Defendants argue that Parks brought this case to coerce them
“into reducing the legal fees or accepting payment in an
unacceptable form.” (The district court seems to have agreed that,
if true, this was enough to support the counterclaim.) In support of
this argument, they point to evidence presented at trial that Parks
6 filed the dissolution case to gain leverage in the partition case,
coerced his ex-girlfriend into adding him and his children to her
health insurance, and threatened defendants with suit when
attempting to negotiate a lower payment. But none of these acts is
evidence of an improper use of the legal system in this case. See
Active Release Techniques, ¶ 12 (the plaintiff’s “reputation for filing,
or even [his] abuse of process in, other lawsuits should have no
bearing on [his] alleged abuse of process here”; use of process in the
case must be looked at objectively); see also Sterenbuch, 266 P.3d
at 438-39 (court properly dismissed abuse of process counterclaim
because alleging that the plaintiff had no lawful claims against the
defendants and used the suit to “harass, embarrass, damage,
burden and wrongfully obtain monies from defendants” didn’t
indicate improper use of process); cf. Aztec Sound Corp. v. W. States
Leasing Co., 32 Colo. App. 248, 252-53, 510 P.2d 897, 899 (1973)
(party used writ of replevin not to obtain property, but to demand
money not owed). 4
4 While threatening suit might indicate an ulterior motive, it doesn’t indicate an improper use of the courts. See Active Release Techniques, LLC v. Xtomic, LLC, 2017 COA 14, ¶ 12 (letters sent to
7 ¶ 15 Defendants seize on the statement in Walker that “[t]he legal
proceeding must be used in an improper manner, for example, to
accomplish a coercive goal.” 148 P.3d at 394. But they take that
statement out of context. As Walker itself makes clear, that
“coercive goal” must be one “that the proceeding was not designed
to achieve.” Id.
¶ 16 One regular and legitimate function of a malpractice action is
to contest attorney fees claimed by the attorney alleged to have
committed malpractice. See Roberts v. Holland & Hart, 857 P.2d
492, 498 (Colo. App. 1993). That’s exactly what defendants allege
Parks is doing in this case. But bringing a malpractice case and
carrying it to its natural end to obtain a result such an action is
designed to achieve doesn’t constitute an improper use of process,
no matter the motive. See Sterenbuch, 266 P.3d at 439 (“[W]rongful
use may not be inferred from the motive.” (citing James H. Moore &
Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo.
App. 1994))); see also Walker, 148 P.3d at 395 (“filing complaints
individuals informing them of an investigation into potential litigation didn’t indicate an abuse of process because they were sent before and outside the scope of any litigation).
8 about barking dogs and cruelty to animals” under a county
ordinance designed to address those issues isn’t an abuse of
process, even with an ulterior motive); cf. Aztec Sound Corp. v. W.
States Leasing Co., 32 Colo. App. 248, 510 P.2d 897 (1973) (leasing
company commenced replevin action to repossess equipment to
coerce payment under threat of removing equipment on which
lessee’s business relied).
¶ 17 We therefore conclude that the district court erred in
reasoning that the jury could find an abuse of process if it found
merely that defendants didn’t provide negligent representation.
Given the lack of evidence of any improper use of process, the
district court should have granted Parks’ motion for a directed
verdict or motion for JNOV on the abuse of process counterclaim.
Accordingly, we vacate the judgment on the abuse of process
counterclaim and direct the district court to enter judgment for
Parks thereon. 5
5Parks also argues that the district court’s error in declining to dismiss this counterclaim taints the verdicts on the other claims. We observe that Parks didn’t make this argument in the district court, as his counsel conceded at oral argument on appeal. We don’t consider arguments that a party failed to make in the district
9 B. Breach of Fiduciary Duty
¶ 18 Parks next contends that the district court erred in dismissing
as duplicative his breach of fiduciary duty claim relating to the
partition case. We aren’t persuaded.
¶ 19 Again, we review the district court’s decision regarding a
motion for directed verdict de novo. Int’l Network, ¶ 8.
¶ 20 A legal malpractice case may, depending on the particular
allegations, be brought under different theories — breach of
contract, breach of fiduciary duty, and negligence. Smith v.
Mehaffy, 30 P.3d 727, 733 (Colo. App. 2000). But while
professional negligence may also indicate a breach of trust, that
doesn’t mean that every professional negligence claim also supports
a separate cause of action for breach of fiduciary duty. Moguls of
Aspen, Inc. v. Faegre & Benson, 956 P.2d 618, 621 (Colo. App.
1997); see also Aller v. Law Office of Carole C. Schriefer, P.C., 140
P.3d 23, 27-28 (Colo. App. 2005). Where the claims arise from the
same material facts and the allegations pertain to an attorney’s
court. Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992).
10 exercise of professional judgment, the breach of fiduciary duty
claim should be dismissed as duplicative. Aller, 140 P.3d at 27-28.
¶ 21 Parks alleged that Parrish breached his fiduciary duty by
entering into the stipulation without Parks’ consent. That same
allegation underlies, in part, the negligence claim and implicates
Parrish’s exercise of professional judgment. 6 Parks doesn’t seem to
argue to the contrary. Rather, he argues that the nature of the
duty, rather than the factual basis, controls. Under the
circumstances of this case, however, that distinction isn’t
dispositive.
¶ 22 “Legal malpractice actions based on negligence concern
violations of a standard of care, whereas legal malpractice actions
based on breach of fiduciary duty concern violations of a standard
of conduct.” Smith, 30 P.3d at 733. A breach of fiduciary duty
claim arises from the attorney’s breach of the duties of loyalty and
confidentiality. Aller, 140 P.3d at 27. But where the action
concerns merely an attorney’s exercise of professional judgment,
6 Contrary to Parks’ characterizations, the agreement at issue was a stipulation in the partition case that would guide a commissioner in valuing the property and determining an equitable division, not a settlement of the case.
11 the claim is one for negligence. Id. at 27-28. And “[w]here, as here,
the operative allegations of the complaint assert violations of both
standards of conduct and standards of care without making specific
and particularized allegations of intentional conduct, . . . the
malpractice claim is based upon negligence.” Id. at 27.
¶ 23 Parks argues on appeal (as he did in the district court) that
Parrish’s breach of fiduciary duty wasn’t entering into a stipulation
without authority, but representing to opposing counsel that he
could enter into the stipulation. 7 We don’t discern any meaningful
difference. Both the negligence claim and the fiduciary duty claim
are based on the same material fact: Parrish entering into a
stipulation. As the district court pointed out, “It’s the same
conduct,” and any argument otherwise would be “splitting hairs.”
¶ 24 Parks’ reliance on Dury v. Ireland, Stapleton, Pryor & Pascoe,
P.C., Civ. No. 08-cv-01285-LTB-MEH, 2009 WL 2139856 (D. Colo.
July 14, 2009) (unpublished order), is misplaced. In that case, the
defendants represented multiple parties with differing interests,
7 Parks’ amended complaint, however, alleges that Parrish and the law firm breached a fiduciary duty by “[e]ntering into a stipulation that [they] did not have authority to enter into on behalf of [Parks].”
12 resulting in a conflict and a breach of the duty of loyalty that was
separate and independent from any negligent handling of the actual
legal work. Parks didn’t allege any such conflict or improper
disclosure of attorney-client information (or any other breach of
loyalty, such as misuse of client funds, see Aller, 140 P.3d at 27-
28).
¶ 25 For these reasons, we conclude that the district court didn’t
err.
C. Breach of Contract
¶ 26 Parks next contends that the district court erred in denying
his motion for a directed verdict on defendants’ breach of contract
counterclaim. Again, we disagree.
¶ 27 Defendants claimed that Parks breached a contract by failing
to pay attorney fees billed for work the law firm performed on his
behalf. Because reasonableness is an implied term in all contracts
for attorney fees, Parks argues that defendants had to prove the
reasonableness of the fees they sought. Going a step further, he
argues that expert testimony was necessary to establish the
reasonableness of defendants’ claimed fees, and because
13 defendants didn’t present any such testimony, the claim necessarily
fails. This last step is where his argument collapses.
¶ 28 Parks doesn’t point to any case — and we haven’t found any —
supporting his assertion that expert witness testimony is required
when breach of contract damages are unpaid attorney fees. Nor
does he make any compelling argument that laypersons can’t
determine the reasonableness of the fees charged by an attorney
without the help of an expert. Cf. Boigegrain v. Gilbert, 784 P.2d
849, 850 (Colo. App. 1989) (in professional negligence cases, expert
testimony as to the standard of care is required when a breach of
duty can’t be understood by a layperson without the help of an
expert). True, in attorney fees disputes, parties frequently offer
expert testimony, but that doesn’t mean that expert testimony is
always required. 8
¶ 29 At trial, Parrish testified about the services rendered, the time
spent on those services, and the associated fees charged. And he
spoke to the reasonableness of the time spent on specific tasks.
8 We don’t mean to suggest that expert testimony on reasonableness is required in certain circumstances or is never required. These issues remain for another day.
14 The jury also considered defendants’ bills to Parks. The jury
therefore had sufficient evidence from which to assess the
reasonableness of the claimed fees. See In re Marriage of Pollock,
881 P.2d 470, 472 (Colo. App. 1994) (additional expert testimony on
reasonableness wasn’t required where testimony of client and
attorney supported the award). 9
D. Costs
¶ 30 Lastly, Parks contends that the district court erred in
awarding costs for an expert witness to defendants. He argues
these costs were considered by the jury as part of the damages for
defendants’ counterclaims, and therefore the court awarded
duplicative costs.
¶ 31 In the district court, however, Parks didn’t object to the costs
on this basis. Therefore, the issue isn’t preserved and we don’t
need to consider it. See Estate of Stevenson v. Hollywood Bar &
Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992).
9 And though defendants asked for $43,000, the jury awarded them only $33,580 for breach of contract, indicating that the jury gave thought to what amount would be reasonable.
15 ¶ 32 Nor do we see any need to vacate the costs award because of
our decision to vacate the judgment on the abuse of process
counterclaim. Though that decision means defendants haven’t
prevailed on every issue, they clearly remain, on balance, the
“prevailing party.” And the costs in question were for defendants’
expert, who testified concerning defendants’ compliance with the
standard of care; these costs don’t relate to the abuse of process
counterclaim.
E. Appellate Attorney Fees
¶ 33 Defendants ask for an award of their appellate attorney fees,
arguing that Parks’ appeal is substantially groundless and that
Parks appealed only to delay or increase defendants’ expenses. We
disagree with their assertions and so decline the request.
III. Conclusion
¶ 34 We vacate the judgment in favor of defendants on the abuse of
process counterclaim, but affirm the judgment in all other respects.
We remand the case to the district court to enter judgment in Parks’
favor on the abuse of process counterclaim, and to amend the
judgment as to damages accordingly.
JUDGE NAVARRO and JUDGE CASEBOLT concur.